Filed 9/29/26 P. v. Stiles CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, A173483, A173646
v. (Sonoma County Super. Ct. Nos.
NICHOLAS DANIEL STILES, SCR-765294-1, 24CR03659)
Defendant and Appellant.
PUBLIC–REDACTED
VERSION*
Defendant Nicholas Stiles entered pleas of no contest to insurance
fraud in one case, and to grand theft in another case. In each case, he was
placed on probation. Defendant filed appeals in both cases, which appeals we
ordered consolidated. He raises the same contentions in both appeals: (1)
the trial court abused its discretion in denying his applications for mental
health diversion; (2) the trial court prejudicially erred in failing to hold a
hearing on his motion to substitute his trial counsel pursuant to People v.
Marsden (1970) 2 Cal.3d 118 (Marsden); and (3) the probation condition
requiring him to “[k]eep probation informed of his whereabouts at all times”
* This case involves material from sealed and confidential records. In
accordance with California Rules of Court, rules 8.45, 8.46, and 8.47, we have
concurrently filed public (redacted) and sealed (unredacted) versions of this
opinion. We hereby order the unredacted version of this opinion sealed.
1
is unconstitutionally vague. The People concede the second point, but dispute
the others.
We accept the People’s concession that the trial court erred in failing to
hold a hearing on defendant’s Marsden motion. We thus conditionally
reverse the orders of probation in both cases and remand with directions to
the trial court to conduct a Marsden hearing. In all other respects, the orders
of probation are affirmed.
BACKGROUND
According to a probation report, in June 2021, defendant was involved
in a traffic collision with another vehicle that resulted in damage to both
vehicles. Defendant represented to the other driver and the police
responding to the scene that he was insured, and the other driver submitted
a claim for damages. An investigation disclosed that defendant was
uninsured at the time of the accident and had purchased an automobile
insurance policy while waiting for the police to respond to the scene.
On August 16, 2023, in case no. SCR-765294-1, the People filed a
complaint charging defendant with two counts of insurance fraud. (Pen.
Code, § 550, subd. (b)(2) & (3)).1
On December 19, 2023, defendant filed an application for mental health
diversion pursuant to section 1001.36. The trial court referred defendant to
the Sonoma County Department of Health Services, Behavioral Health
Division (SCBH) to be assessed for eligibility and suitability for mental
health diversion. The People opposed the application.
While that application was pending, defendant picked up new charges
based on an incident at a 7-Eleven store on April 30, 2024. Defendant
allegedly stole several items from the store, and when a witness tried to
1 Undesignated statutory references that follow are to the Penal Code.
2
assist a store employee in detaining defendant, defendant punched the
witness in the face. On May 10, the People filed a first amended complaint in
case no. 24CR03659 charging defendant with second degree robbery (§ 211).
It also alleged defendant committed the offense while he had been released
on his own recognizance (§ 12022.1); suffered two prior strike convictions
(§§ 667, subds. (d), (e), 1170.12, subds. (b), (c)); and suffered two prior serious
and/or violent felonies (§ 667, subd. (a)). Various aggravating factors were
also alleged.
On June 21, defendant filed an application for mental health diversion
in case no. 24CR03659. The court again referred him to SCBH for a mental
health diversion assessment.
In a motion dated December 16, defendant requested substitution of
counsel pursuant to Marsden. In his accompanying declaration, he asserted
that his trial counsel among other things failed to confer with defendant
concerning the preparation of his defense, “failed . . . and refused to object to
gross prosecutorial misconduct during hearings,” and lost the trust of
defendant who “cannot confide in counsel in order to prepare a defence [sic].”
The Marsden motion was marked “Received But Not Filed” by the court
on January 6, 2025. The court never held a hearing on the motion.
On March 3, 2025, the court held a plea hearing in both cases nos.
SCR-765294-1 and 24CR03659.2 At the hearing, the prosecutor orally
amended the first amended complaint in case no. 24CR03659 to add a charge
of grand theft (§ 487) as count 2 based on the 7-Eleven incident. Defendant
pleaded no contest to one count of insurance fraud in case no. SCR-765294-1,
2 At the hearing, the court also addressed defendant’s charges in several
other criminal cases pending at the time. These cases are not at issue in the
present appeals.
3
and to one count of grand theft in case no. 24CR03659, in exchange for the
dismissal of the remaining counts and allegations in each case.
On April 1, the court held a sentencing hearing in both cases. In each
case, the court suspended imposition of sentence and placed defendant on
probation for two years subject to the various terms and conditions, including
that he serve one year in county jail. The one-year jail term imposed in each
case was to be served concurrently. Other conditions of probation required
defendant to “[k]eep probation advised of his whereabouts at all times” and
“[n]otify them if he changes his home address or employment.” The court
awarded defendant presentence custody credits that exceeded the one-year
jail term, and thus released him from custody.
On May 12, defendant was arraigned on a violation of probation and
his probation was revoked. At a hearing on June 11, defendant admitted to
violating his probation and the trial court reinstated it.
Meanwhile, on May 28, defendant through counsel filed a notice of
appeal that referred only to case no. SCR-765294-1 and indicated he was
appealing from the order denying his request for mental health diversion and
the order of probation. He requested, and obtained, a certificate of probable
cause. The appeal was docketed in this court as case no. A173483.
On June 25, defendant filed in propria persona a notice of appeal
referring to case no. 24CR03659 and requested, but failed to obtain, a
certificate of probable cause. This appeal was docketed as case no. A173646.
On November 5, the superior court clerk filed in this court a declaration
stating “that a review of the case file revealed that there is no responsive
pleading or action concerning the Marsden Motion filed on 01/06/2025.”
4
On January 8, 2026, we granted defendant’s request to consolidate the
appeals.
DISCUSSION
Appellate Jurisdiction
As a threshold matter, the People argue we lack jurisdiction to consider
defendant’s arguments in the appeal filed in case no. 24CR03659 because he
did not file a timely notice of appeal. We disagree.
“[A] notice of appeal and any statement required by Penal Code section
1237.5 must be filed within 60 days after the rendition of the judgment or the
making of the order being appealed.” (Cal. Rules of Court, rule 8.308(a);
People v. Mendez (1999) 19 Cal.4th 1084, 1094 (Mendez).) Section 1237,
subdivision (a) defines “final judgment” for purposes of taking an appeal as
“[a] sentence [or] an order granting probation.” (See People v. McKenzie
(2020) 9 Cal.5th 40, 46.) “[T]he time requirements for taking an appeal are
mandatory, and appellate courts are without jurisdiction to consider a late
appeal.” (In re Del Campo (1961) 55 Cal.2d 816, 817; accord, Mendez, supra,
19 Cal.4th at p. 1094.)
Here, in both cases nos. SCR-765294-1 and 24CR03659, the trial court
suspended imposition of sentence and placed defendant on probation on April
1, 2025. Sixty days from the orders of probation was June 2, 2025.
Defendant filed a notice of appeal that referred only to case no. SCR-765294-1
on May 28, 2025, which was within the jurisdictional time period to appeal
and thus timely. On June 25, 2025, defendant filed a notice of appeal
designating case no. 24CR03659 and checking the boxes indicating he was
challenging the validity of his plea and the denial of his mental health
diversion motion. This notice of appeal thus was filed after the 60-day time
period.
5
“The notice of appeal must be liberally construed” (Cal. Rules of Court,
rule 8.304(a)(4)) “ ‘so as to protect the right of appeal if it is reasonably clear
what appellant was trying to appeal from, and where the respondent could
not possibly have been misled or prejudiced.’ ” (D’Avola v. Anderson (1996)
47 Cal.App.4th 358, 361.) The liberal construction rule exists to “ ‘implement
the strong public policy favoring the hearing of appeals on the merits.’ ” (K.J.
v. Los Angeles Unified School District (2020) 8 Cal.5th 875, 882.) To be sure,
a notice of appeal must “identif[y] the particular judgment or order being
appealed.” (Cal. Rules of Court, rule 8.304(a)(4).) However, under the liberal
construction rule, courts have held that once a notice of appeal is timely filed
from one appealable order, a court can construe it as encompassing a
separate, related appealable order as to which it is timely filed, if doing so
aligns with the filer’s intent and there is no unfair prejudice to the
respondent. For example, in In re Jordan (1992) 4 Cal.4th 116, a defendant
filed in propria persona a notice of appeal that referred to only one of his two
separate criminal cases, although judgment and sentencing were rendered
simultaneously in both cases. The Supreme Court held, “in view of the
particular facts of this case (i.e., petitioner’s notice of appeal indicating that
he appealed ‘from the final judgment of conviction and sentence imposed’ by
the trial court on [the same date], and the county clerk’s indicated awareness,
as soon as the notice of appeal was received by that office, that two separate
case numbers potentially were involved in the appeal from the judgment
entered that date), we deem it appropriate, in the interests of justice, to
permit petitioner’s appeal to be fully heard on the merits in both cases.” (Id.
at p. 131, fn. 9; cf. K.J. v. Los Angeles Unified School District, supra,
8 Cal.5th at p. 878 [notice of appeal filed by an appellant construed to include
a sanctioned attorney who was not listed as an appellant in the notice].)
6
We reach a similar conclusion here. Defendant’s notice of appeal filed
on May 28, 2025 referring to only case no. SCR-765294-1 indicated he was
appealing from the orders dated “12/4/2024” (denial of mental health
diversion) and “4/1/2025” (grant of probation). But as discussed above, the
trial court simultaneously: (1) heard and denied defendant’s applications for
mental health diversion in both that case and case no. 24CR03659, (2)
accepted defendant’s pleas of no contest in both cases, and (3) conducted
sentencing and issued orders of probation in both cases. Further, there is no
evidence that the People were “misled or prejudiced.” The parties have fully
briefed the merits of defendant’s claims, which are the same in both cases.
“[I]n view of the particular facts of this case,” as in In re Jordan, “we deem it
appropriate, in the interests of justice,” to construe the notice of appeal filed
in case no. SCR-765294-1 as sufficient to constitute a notice of appeal in both
that case and case no. 24CR03659. (In re Jordan, supra, 4 Cal.4th at p. 131,
fn. 9.) So construed, we “permit [defendant’s] appeal to be fully heard on the
merits in both cases.” (Ibid.)
Mental Health Diversion
Turning to the merits, defendant argues the trial court abused its
discretion in denying his applications for mental health diversion. We
disagree.
Applicable Law and Standard of Review
Enacted in 2018, section 1001.36 gives the trial court discretion to
grant pretrial diversion to defendants suffering from qualifying mental
disorders. (§ 1001.36, subd. (a); Vaughn v. Superior Court (2024)
105 Cal.App.5th 124, 133 (Vaughn).) “Pretrial diversion ‘allows for the
suspension of criminal proceedings and potential dismissal of charges upon
successful completion of mental health treatment.’ [Citation.] The statute
7
expressly promotes ‘[i]ncreased diversion of individuals with mental disorders
to mitigate the individuals’ entry and reentry into the criminal justice system
while protecting public safety.’ ” (Vaughn, supra, 105 Cal.App.5th at p. 133.)
To qualify for diversion, a defendant bears the burden of making a
prima facie case that (i) he is “eligible” for diversion, and (ii) he, and the
charged offense, are “suitable” for diversion. (§ 1001.36, subd. (e).)
Section 1001.36, subdivision (b) sets forth the two requirements for
eligibility: that (1) the defendant has been diagnosed with a qualifying
mental disorder; and (2) the qualifying mental disorder “was a significant
factor in the commission of the charged offense.” The second requirement is
presumptively satisfied “unless there is clear and convincing evidence that
[the disorder] was not a motivating factor, causal factor, or contributing
factor to the defendant’s involvement in the alleged offense.” (Ibid.)
A defendant is suitable for diversion if he satisfies all four criteria set
forth in section 1001.36, subdivision (c): (1) in the opinion of a qualified
mental health expert, the defendant’s mental health disorder would respond
to mental health treatment; (2) the defendant consents to diversion and
agrees to waive their speedy trial rights; (3) the defendant agrees to comply
with treatment requirements; and (4) the defendant will not pose an
“unreasonable risk of danger to public safety” as defined in section 1170.18, if
treated in the community. (§ 1001.36, subd. (c).) Suitable offenses are any
not listed in section 1001.36, subdivision (d).
Even if the defendant is both eligible and suitable for diversion, the
trial court must also be satisfied “that the recommended inpatient or
outpatient program of mental health treatment will meet the specialized
mental health treatment needs of the defendant.” (§ 1001.36, subd.
(f)(1)(A)(i); Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892
8
(Sarmiento).) “This is not an additional eligibility or suitability requirement
the defendant must meet[,] [but] [r]ather . . . an ongoing assessment to
assure that defendants will receive appropriate treatment for their particular
conditions as part of the diversion program.” (Sarmiento, supra,
98 Cal.App.5th at p. 892.) “Finding the treatment would not meet
defendant’s specialized health treatment needs is an appropriate basis to
deny diversion, assuming there is no abuse of discretion with the analysis.”
(People v. Russo (2026) 121 Cal.App.5th 134, 139 (Russo).)3
We review the trial court’s denial of mental health diversion for abuse
of discretion. (People v. Moine (2021) 62 Cal.App.5th 440, 448.) “A court
abuses its discretion when it makes an arbitrary or capricious decision by
applying the wrong legal standard [citations], or bases its decision on express
or implied factual findings that are not supported by substantial evidence.”
(Id. at p. 449.) Under the substantial evidence test, “ ‘we must view the
evidence in the light most favorable to the People and must presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.’ ” (People v. Gerson (2022) 80 Cal.App.5th 1067,
1079.) Lastly, “[a]bsent evidence to the contrary, we presume that the trial
court knew the law and followed it.” (People v. Ramirez (2021) 10 Cal.5th
983, 1042.)
Additional Background
On December 19, 2023, in case no. SCR-765294-1, defendant filed an
application for mental health diversion pursuant to section 1001.36. The
3 Finally, the statute also gives the trial court discretion, also known as
“residual” discretion, to deny diversion even if the statutory requirements are
met. (See § 1001.36, subd. (a); People v. Qualkinbush (2022) 79 Cal.App.5th
879, 891.) The parties apparently agree that the court did not invoke its
residual discretion.
9
application attached “documentation reflecting a recent mental health
diagnosis or mental health treatment within the past 5 years by a qualified
mental health expert.”4 [REDACTED]5 . . . [REDACTED]
The trial court referred defendant to SCBH to be assessed for mental
health diversion in case no. SCR-765294-1, as well as defendant’s other
pending criminal cases.
[REDACTED]6 [REDACTED]
On March 1, 2024, the People filed an opposition to the application for
mental health diversion, [REDACTED]
On March 20, the court held a hearing on the application.
[REDACTED] However, counsel explained that defendant was no longer in
custody and asked the court to continue the hearing [REDACTED] The court
continued the hearing for an update on the treatment plan.
Subsequently, defendant was charged in case no. 24CR03659 with
second degree robbery in connection with the 7-Eleven incident. On June 21,
defendant filed an application for mental health diversion in that case. The
court again referred defendant to SCBH for an evaluation.
[REDACTED]
4 At defendant’s request, the trial court ordered sealed the documents
attached to his application.
5 [REDACTED]
6 [REDACTED]
Defendant applied in this court to: (1) file under seal unredacted briefs
disclosing not only the materials previously sealed by the trial court, but also
the materials that are part of the confidential record but were not previously
sealed; and (2) file redacted briefs redacting references to all of those
materials. (See Cal. Rules of Court, rules 8.46 [sealed records], 8.47
[confidential but not sealed records].) We granted the application and
permitted the People to also file redacted and unredacted briefs.
10
On December 4, the court held a joint hearing on defendant’s
applications for mental health diversion in cases nos. SCR-765294-1 and
24CR03659. [REDACTED]
Following that argument, the court ruled as follows: “Based on
certainly my review of the motions as well as the Mental Health Diversion
eligibility determination[,] [defendant] himself, his behavior in the past, and
I’m not going to comment on his future behavior, he’s just not suitable and
there is no nexus. So I’m going to deny in all cases Mental Health Diversion
for [defendant].”
Analysis
The parties agree that the trial court erred in finding defendant
ineligible for mental health diversion. The parties also apparently agree that
defendant met the second and fourth suitability criteria. However, they
disagree on whether defendant met the first and third suitability criteria.
As a preliminary matter, although the court expressly found defendant
“not suitable” for diversion, it did not state which of the four suitability
criteria it relied upon. The court did, however, expressly rely on defendant’s
“behavior in the past” as one reason to deny diversion. We infer from the
record that the court was referring to [REDACTED]
Contrary to defendant’s assertion, the trial court did not abuse its
discretion in denying diversion based on [REDACTED]. Two cases are
instructive: Sarmiento, supra, 98 Cal.App.5th 882 and Russo, supra, 121
Cal.App.5th 134.7
In Sarmiento, upon which defendant here relies, the defendant suffered
7 The People alerted us to Russo, supra, 121 Cal.App.5th 134, which was
decided on May 22, 2026, after the filing of defendant’s opening brief and the
People’s respondent’s brief. Defendant addresses Russo in his reply brief.
11
from posttraumatic stress disorder, depression, and stimulant use disorder
specific to methamphetamine. (Sarmiento, supra, 98 Cal.App.5th at p. 887.)
The trial court denied diversion in part because it found the defendant’s
failure to remain drug free after previously participating in substance abuse
treatment indicated “ ‘she would not respond well to mental health
treatment.’ ” (Ibid.) The Court of Appeal held it was an abuse of discretion to
deny diversion based on such reasoning, whether on the ground that the
defendant’s mental health symptoms would not respond to treatment (the
first suitability criterion) (§ 1001.36, subd. (c)(1)), or on the ground that the
recommended treatment plan would not meet her needs (the ongoing analysis
separate from eligibility or suitability) (id., subd. (f)(1)(A)(i)). (See Sarmiento,
supra, at pp. 893–895.)
As to the first suitability factor, the Sarmiento court explained that
though the defendant’s prior attempts at drug treatment were arguably
“unsuccessful,” she had never received treatment for her mental health
conditions, which drove her to substance abuse as a form of self-medication.
(Sarmiento, supra, 98 Cal.App.5th at p. 894.) Because the defendant never
previously received any treatment for her underlying mental health
conditions, there was insufficient evidence to support a finding that her
mental health symptoms would not respond to treatment pursuant to section
1001.36, subdivision (c)(1). (Sarmiento, at pp. 893–894.) Sarmiento observed
the trial court apparently “failed to appreciate the distinction between
different types of treatment, conflating substance abuse recovery with
therapy and medication directed at PTSD and depression.” (Id. at p. 894.)
Sarmiento next held that to the extent the trial court relied on the
defendant’s lack of success in past attempts at substance abuse treatment to
also find that the recommended treatment plan would not meet the
12
defendant’s “specialized mental health treatment needs” (§ 1001.36, subd.
(f)(1)(A)(i)), such finding was not supported by substantial evidence.
(Sarmiento, supra, 98 Cal.App.5th at pp. 894–895.) The Court of Appeal
explained that under section 1001.36, subdivision (f)(1)(A)(i)), “a court might
reject diversion if it concluded that the proposed treatment services did not
target or could not effectively address the defendant’s particular diagnosis.”
(Sarmiento, at p. 895.) Sarmiento held the trial court erred in rejecting
diversion on this ground, because the defendant’s proposed treatment for
underlying mental health diagnoses, coupled with substance abuse
treatment, differed from the prior failed drug treatment: “[T]he alleged
failure of prior drug treatment programs [said] nothing about any inadequacy
of the proposed plan to address Sarmiento’s mental health needs. Indeed,
[the doctor’s] evaluation specifically explain[ed] why the current proposal
[was] significantly different from Sarmiento’s prior substance abuse-only
treatment efforts.” (Id. at p. 895, original italics omitted, italics added.)
In Russo, the trial court expressly found the defendant “not suitable”
for diversion based on his failure to reform his behavior despite opportunities
to receive drug and mental health treatment previously. (Russo, supra,
121 Cal.App.5th p. 138.) “Specifically, the trial court reiterated defendant’s
previous completion of an Adult and Teen Challenge program and found ‘he
immediately went back to using methamphetamine [and] not taking his
medication.’ (Ibid.) Thus, the court concluded, ‘[T]he past portends the
future, so [the c]ourt finds [defendant’s] not suitable.’ ” (Ibid.)
The Court of Appeal found no error. It noted that the trial court
couched its comments as pertaining to the defendant’s “suitability” and “for
diversion,” the court’s reasoning “mirrored the analysis under section
1001.36, subdivision (f)(1)(A)(i).” (Russo, supra, 121 Cal.App.5th at p. 139.)
13
And although the trial court “conflated that analysis with the suitability
analysis,” it did not abuse its discretion in denying diversion because the
proposed treatment would not meet the defendant’s specialized health
treatment needs: the defendant proposed to return to the very same program
he had completed before and then relapsed, and did not identify anything
that would be done differently the second time. (Id. at pp. 139–140.) On this
basis Russo found Sarmiento distinguishable, explaining, “Unlike in
Sarmiento, defendant has failed to establish the proposed treatment plan was
any different than the plan that originally failed to address his specialized
health treatment needs.” (Russo, at p. 140.)
Here, we conclude that the trial court did not abuse its discretion in
denying diversion [REDACTED]
[REDACTED]
In sum, the trial court did not abuse its discretion in denying
defendant’s applications for mental health diversion [REDACTED]
Given our conclusion, we need not address the parties’ arguments on
whether defendant met the third suitability criterion, that the defendant
agreed to comply with treatment requirements (§ 1001.36, subd. (c)(3)).
Marsden Motion
Defendant next argues the trial court committed reversible error when
it failed to conduct a hearing on his Marsden motion. The People concede the
point. We accept the People’s concession.
“ ‘The law governing a Marsden motion “is well-settled. ‘When a
defendant seeks to discharge his appointed counsel and substitute another
attorney, and asserts inadequate representation, the trial court must permit
the defendant to explain the basis of his contention and to relate specific
instances of the attorney’s inadequate performance.’ ” ’ ” (People v. Jackson
14
(2009) 45 Cal.4th 662, 682.) “ ‘[A] proper and formal’ Marsden motion is not
required—the defendant need only clearly indicate to the trial court ‘in some
manner’ that he or she is requesting the discharge and replacement of the
appointed counsel.” (People v. Armijo (2017) 10 Cal.App.5th 1171, 1178
(Armijo).) “[O]nce the defendant clearly indicates to the trial court a request
for the discharge and replacement of appointed counsel, the court must hold a
hearing to allow the defendant to explain the basis for the request.” (Id. at
p. 1179.) Failure to conduct such a hearing “is legal error that compels
reversal of the defendant’s conviction unless the record shows beyond a
reasonable doubt that the error was harmless.” (Ibid., citing Marsden, supra,
2 Cal.3d at p. 126.)
However, when a trial court’s failure to hold a hearing is inadvertent
and a defendant fails to press for a hearing, he can abandon his Marsden
request. (People v. Jones (2012) 210 Cal.App.4th 355, 361 (Jones); see also
People v. Vera (2004) 122 Cal.App.4th 970, 982 (Vera).)
Here, it is undisputed that the trial court did not hold a hearing on
defendant’s Marsden motion. Although there is also no indication defendant
pressed for a hearing, the People do not argue that defendant abandoned his
Marsden request and instead agree with him that the court’s failure to hold a
hearing was reversible error. In support, both parties cite Armijo, supra,
10 Cal.App.5th 1171.
In Armijo, Armijo sent two letters to the trial court expressing concern
about his trial counsel and requesting appointment of new counsel. (Armijo,
supra, 10 Cal.App.5th at pp. 1175–1177.) After sending the second letter,
there were four appearances in court. (Ibid.) The trial court did not schedule
any Marsden hearings, and days after the fourth court appearance, Armijo
entered a plea of no contest to the charges and allegations against him.
15
(Ibid.) The appellate court held the trial court erred by not holding a hearing
on Armijo’s Marsden request. (Armijo, supra, 10 Cal.App.5th at p. 1180.) In
finding that Armijo did not abandon his request, the Armijo court
distinguished its case from Jones, supra, 210 Cal.App.4th 355, which held the
defendant in that case abandoned his Marsden request by failing to press for
a hearing. (Armijo, supra, 10 Cal.App.5th at pp. 1182–1183.) Armijo
distinguished Jones on two grounds. (Armijo, at pp. 1182–1183.) First, in
contrast with Armijo, defense counsel in Jones was fully aware of his client’s
Marsden motion and, therefore, the failure to press the issue rested largely
with counsel. (Id. at p. 1182.) Second, the appellate court thought it possible
that the defendant did not raise the issue at the court hearing immediately
following his second letter because he mistakenly thought the court received
it and denied it. (Id. at p. 1183.) In fact, the court had not yet received the
letter. (Ibid.)
This case more closely resembles Armijo than Jones. Here, defendant
“clearly indicated” to the trial court in his motion that he was “requesting the
discharge and replacement of the appointed counsel.” (Armijo, supra,
10 Cal.App.5th at p. 1178.) There is nothing in the record suggesting the
trial court’s failure to hold a hearing on the Marsden motion was anything
other than an inadvertent omission. Unlike in Jones, where the appellate
court laid responsibility largely at the feet of defense counsel because the
record supported counsel’s awareness of the motion, here, like in Armijo,
there is no indication that defense counsel was aware of defendant’s motion.
“Under these circumstances, we do not believe that the fault for the trial
court’s failure to hold a Marsden hearing should rest with [defendant].”
(Armijo, at p. 1183.) We thus conclude defendant did not abandon his
Marsden motion and that the court erred in failing to hold a hearing on the
16
motion.
We also agree with the parties that the error was not harmless. In
Armijo, the court held the error in failing to hold a Marsden hearing was not
harmless, reasoning that “because the record largely is limited to Armijo’s
complaint letters, we do not know what other evidence Armijo could have
offered had he been afforded a Marsden hearing. . . . Under these
circumstances, we ‘cannot speculate upon the basis of a silent record that the
trial court, after listening to defendant’s reasons, would decide the
appointment of new counsel was unnecessary.’ ” (See Armijo, supra,
10 Cal.App.5th at p. 1183.) Likewise here.
We therefore will conditionally to reverse the orders of probation in
both superior court cases and remand to the trial court with the following
directions: “ ‘(1) the court shall hold a hearing on [defendant]’s Marsden
motion concerning his representation by the public defender’s office; (2) if the
court finds that [defendant] has shown that a failure to replace his appointed
attorney would substantially impair his right to assistance of counsel, the
court shall appoint new counsel to represent him and shall entertain such
applications as newly appointed counsel may make; and (3) if newly
appointed counsel makes no motions, any motions made are denied, or
[defendant]’s Marsden motion is denied, the court shall reinstate the [orders
of probation].’ ” (People v. Sanchez (2011) 53 Cal.4th 80, 92–93; accord,
Armijo, supra, 10 Cal.App.5th at pp. 1183–1184 & fn. 6.)
17
Probation Condition
Lastly, defendant argues that the probation condition requiring him to
“[k]eep probation ‘advised of his whereabouts at all times’ ”8 is
unconstitutionally vague.
As an initial matter, defendant acknowledges that he did not object to
this probation condition in the trial court, but argues that he did not forfeit
his challenge to it on appeal because his claim presents a pure question of
law. The People agree. As do we. Where, as here, a claim that a probation
condition is facially vague and violates fundamental constitutional rights is
based on undisputed facts, it may be treated as a question of law that is not
forfeited by the failure to raise it in the trial court. (See In re Sheena K.
(2007) 40 Cal.4th 875, 881, 888–889 (Sheena K.); People v. Quiroz (2011)
199 Cal.App.4th 1123, 1127 [forfeiture rule does not apply to defendant’s
contention that as a matter of law probation condition, on its face, is
unconstitutionally vague and overbroad].)
Turning to the merits, to withstand a challenge on the ground of
vagueness, “[a] probation condition ‘must be sufficiently precise for the
probationer to know what is required of him, and for the court to determine
whether the condition has been violated,’ . . . ” (Sheena K., supra, 40 Cal.4th
at p. 890.) Thus, a condition of probation is invalid if it is “ ‘ “so vague that
men of common intelligence must necessarily guess at its meaning and differ
as to its application.” [Citation.]’ [Citation.]” (Ibid.) A vague condition
8 The probation condition, as written in the minute order for the
sentencing hearing, is slightly different: “Keep probation advised of
whereabouts.” We agree with defendant that where, as here, a discrepancy
between the court’s oral pronouncement and the minute order exists, the oral
pronouncement controls. (People v. Gabriel (2010) 189 Cal.App.4th 1070,
1073.)
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allows the probation officer and the courts to apply a requirement or
restriction on an “ ‘ “ad hoc and subjective basis, with the attendant dangers
of arbitrary and discriminatory application.” [Citation.]’ [Citation.]” (Ibid.)
“When interpreting a probation condition, we rely on ‘context and
common sense.’ ” (In re I.S. (2016) 6 Cal.App.5th 517, 525, disapproved on
another ground in People v. Adelmann (2018) 4 Cal.5th 1071, 1078, fn. 10.)
Probation terms must be “given ‘the meaning[s] that would appear to a
reasonable, objective reader’ ” (People v. Olguin (2008) 45 Cal.4th 375, 382),
and interpreted in context and with the use of common sense. (In re Ramon
M. (2009) 178 Cal.App.4th 665, 677, disapproved on another ground in In re
G.C. (2020) 8 Cal.5th 1119, 1133.) A probation condition “should not be
invalidated as unconstitutionally vague ‘ “ ‘if any reasonable and practical
construction can be given to its language’ ” ’ ” or if its terms may be made
reasonably certain by reference to “ ‘ “other definable sources.” ’ ” (People v.
Hall (2017) 2 Cal.5th 494, 501.)
Defendant argues the probation condition requiring him to “[k]eep
probation advised of his whereabouts at all times” is unconstitutionally vague
because it “does not give [him] adequate notice of how he can avoid violating
his probation.” He contends, “The wording creates the absurd result that [he]
could violate his probation by failing to report, for instance, travel to a
doctor’s appointment or to the grocery store. There is no guidance on how
often or under what circumstances [defendant] must notify probation of his
movements.”
The People, however, argue that probation condition is not
unconstitutionally vague because a reasonable and practical construction can
be given to its language. They note that immediately after the court ordered
defendant to “[k]eep probation advised of his whereabouts at all times,” it
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also ordered to defendant to “[n]otify [probation] if he changes his home
address or employment.” The People maintain that “[t]ogether, the meaning
of the conditions communicated to [defendant] that he was to inform
probation of any significant changes in his circumstances such as a change in
his residence or employment.” And they argue that such a requirement is
proper. (See People v. Stapleton (2017) 9 Cal.App.5th 989, 992, 995–997
[requiring a probationer to notify probation of changes in his or her residence
deemed constitutional].)
In his reply brief, defendant argues the People’s “reading does not save
the challenged condition from its unconstitutional vagueness, but rather
renders it superfluous.”
The People have the better argument. In context, the directive to
“[k]eep probation advised of [defendant’s] whereabouts at all times” must be
interpreted with the directive to “[n]otify [probation] if he changes his home
address or employment.” Applying context and common sense, the condition
requiring defendant to keep probation advised of his whereabouts at all times
simply requires him to notify probation of any changes in his residence or
employment. No reasonable person would read the probation condition to
mean that defendant is required to inform probation of what he is doing and
where he is located every minute of the day, every day. We thus conclude
that the probation condition requiring defendant to “[k]eep probation advised
of [defendant’s] whereabouts at all times” is not unconstitutionally vague.
DISPOSITION
The orders of probation in superior court cases nos. SCR-765294-1 and
24CR03659 are conditionally reversed and the matters are remanded with
the following directions: (1) the trial court shall hold a hearing on
defendant’s Marsden request; (2) if defendant prevails, the trial court shall
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appoint new counsel to assist him and shall entertain such applications as
newly appointed counsel may make; and (3) if the Marsden request is denied,
the trial court shall reinstate the orders of probation. In all other respects,
the orders of probation are affirmed.
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RICHMAN, J.
We concur.
STEWART, P. J.
DESAUTELS, J.
(A173483N, A173646N)
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